[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11044 JAN 11, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 8:09-cr-00310-VMC-EAJ-2
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JERMAINE BROWN,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 11, 2012)
Before TJOFLAT, EDMONDSON, and FAY, Circuit Judges.
PER CURIAM:
Jermaine Brown appeals his 151-month sentence, imposed within the
applicable guideline range of 151 to 188 months, after pleading guilty to
conspiring to possess with intent to distribute at least 500 grams of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. This appeal presents the
question of whether the district court correctly enhanced Brown’s sentence under
the career-offender guideline by treating his prior Florida conviction for resisting
an officer with violence as a “crime of violence.” For the reasons stated below, we
affirm.
I.
In preparing the presentence investigation report (“PSI”), the probation
officer determined that Brown qualified for an enhanced guideline range as a
“career offender,” pursuant to U.S.S.G. § 4B1.1, because he had two prior felony
convictions for either a “controlled substance offense” or a “crime of violence.”
Specifically, Brown had been previously convicted in New Jersey for conspiracy
to distribute heroin, which constituted a controlled substance offense, and he had
also sustained a conviction in Florida for resisting an officer with violence, which
constituted a crime of violence.
Brown objected to the PSI on the ground that his Florida conviction was not
a proper predicate for the career-offender enhancement because it was not a crime
of violence under the Guidelines. The probation officer responded that, in United
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States v. Nix (adopting United States v. Hayes),1 this Court held that resisting an
officer with violence constitutes a “violent felony” under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The probation officer noted that,
because the definitions of “violent felony” under the ACCA and “crime of
violence” under the Guidelines are substantially the same, and because Nix is
binding precedent, Brown’s conviction qualified as a crime of violence. At the
sentencing hearing, the district court agreed with, and adopted, the probation
officer’s response, finding that Brown’s Florida conviction was properly used as a
predicate for the career-offender enhancement. Despite an appeal waiver in
Brown’s plea agreement, the district court, with the government’s consent, granted
him leave to appeal this finding.
II.
We review de novo a district court’s application and interpretation of the
Sentencing Guidelines. United States v. Machado, 333 F.3d 1225, 1227 (11th Cir.
2003). To qualify for an enhanced sentence as a career offender, a defendant must,
among other things, have “at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The relevant
1
United States v. Nix, 628 F.3d 1341 (11th Cir. 2010), cert. denied (U.S. Oct. 3, 2011)
(No. 11-5011); United States v. Hayes, 409 Fed. App’x 277 (11th Cir. 2010), cert. denied (U.S.
Oct. 3, 2011) (No. 10-9621).
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definition for the term “crime of violence” is found in § 4B1.2(a), which provides:
The term “crime of violence” means any offense under federal or state
law, punishable by imprisonment for a term exceeding one year,
that—
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). The definition of a crime of violence under § 4B1.2(a) is
“virtually identical” to the definition of a violent felony in the ACCA, and,
therefore, this Court applies a similar analysis in deciding whether a given offense
qualifies as a crime of violence or a violent felony. United States v. Alexander, 609
F.3d 1250, 1253 (11th Cir. 2010), cert. denied, 131 S.Ct. 1783 (2011).2
Florida Statute § 843.01 provides: “Whoever knowingly and willfully
resists, obstructs, or opposes any officer . . . by offering or doing violence to the
person of such officer . . . , is guilty of a felony of the third degree.” Fla. Stat.
§ 843.01. In interpreting the statute, the Florida Supreme Court held that “no
heightened or particularized, i.e., no specific, intent is required for the commission
2
As discussed below, we follow Nix/Hayes in concluding that Florida’s resisting-with-
violence offense qualifies as a crime of violence under the residual clause of § 4B1.2(a)(2).
Accordingly, we find it unnecessary to consider whether that offense also contains as an element
the use, attempted use, or threatened use of physical force, pursuant to § 4B1.2(a)(1).
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of this crime, only a general intent to ‘knowingly and willfully’ impede an officer
in the performance of his or her duties.” Frey v. State, 708 So.2d 918, 920 (Fla.
1998).
In Nix, we held that a defendant’s conviction for violating § 843.01
constituted a violent felony under the ACCA. Nix, 628 F.3d at 1342. We were
persuaded by the rationale in the unpublished opinion of Hayes and adopted its
holding. Id. In Hayes, applying the categorical approach, we concluded that a
violation of § 843.01 “falls squarely within ACCA’s residual clause” because it
presents a serious potential risk of physical injury. Hayes, 409 Fed. App’x
at 278-79. We reasoned: “Common sense tells us emphatically that the act of
resisting arrest poses a threat of direct confrontation between a police officer and
the subject of the arrest, creating the potential for serious physical injury to the
officer and others.” Id. at 279 (quotation and alteration omitted). Citing the
Supreme Court’s decision in Begay v. United States,3 we further reasoned that a
3
Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). In
Begay, the Supreme Court held that the term “violent felony” did not apply to “every crime that
presents a serious potential risk of physical injury to another,” but only to crimes that are
“roughly similar, in kind as well as in degree of risk posed,” to the examples listed in the ACCA,
namely, burglary, arson, extortion, or crimes involving the use of explosives. Id. at 142-43, 128
S.Ct. at 1584-85 (quotation omitted). The Supreme Court stated that the enumerated crimes “all
typically involve purposeful, violent, and aggressive conduct.” Id. at 144-45, 128 S.Ct. at 1586
(quotations omitted). Strict liability crimes, however, such as driving under the influence,
generally do not involve purposeful, violent, and aggressive conduct, and could be committed
without “any criminal intent at all.” Id. at 145, 128 S.Ct. at 1586-87. Therefore, the Court
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violation of § 843.01 is “purposeful, violent, and aggressive,” because the
commission of the offense “requires, by its own terms, that the defendant have
knowingly and willfully resisted, obstructed, or opposed an officer by offering or
doing violence to the person of that officer.” Id. Thus, the offense contained the
same element of “purposeful violence and aggression” as the offenses enumerated
in the ACCA, namely, burglary, arson, extortion, and use of explosives. Id. We
rejected the defendant’s argument that § 843.01 constituted a strict liability offense,
noting that the Florida Supreme Court in Frey “has characterized the statute as a
general intent crime, not a strict liability crime.” Id. at 279 n.1.
There is no dispute that, pursuant to Nix/Hayes, Florida’s resisting-with-
violence offense constitutes a crime of violence under the Guidelines. See
Alexander, 609 F.3d at 1253; United States v. Archer, 531 F.3d 1347, 1352 (11th
Cir. 2008) (“[A] prior panel’s holding is binding on all subsequent panels unless
and until it is overruled or undermined to the point of abrogation by the Supreme
Court or by this court sitting en banc.”). Brown contends, however, that Nix/Hayes
has been undermined to the point of abrogation by the recent Supreme Court
decision in Sykes v. United States, 564 U.S. __, 131 S.Ct. 2267, 180 L.Ed.2d 60
concluded that New Mexico’s crime of driving under the influence did not qualify as a violent
felony under the ACCA. Id. at 148, 128 S.Ct. at 1588.
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(2011).4
In Sykes, the Supreme Court held that an Indiana offense of knowingly or
intentionally fleeing from a law enforcement officer in a vehicle constituted a
violent felony under the residual clause of the ACCA. Sykes, 564 U.S. at __, 131
S.Ct. at 2270-77. In reaching this holding, the Supreme Court first compared
vehicle flight to the enumerated offenses (burglary, extortion, arson, and use of
explosives) and determined that vehicle flight is akin to arson and burglary because
vehicle flight poses a danger of collateral damage to others and creates a risk of
violent confrontation with the police. Id. at __, 131 S.Ct. at 2273-74. The Court
then cited statistics regarding injuries from vehicle flight, arson, and burglary, and
stated: “Although statistics are not dispositive, here they confirm the commonsense
4
In his brief, Brown raises several additional arguments that do not warrant much
discussion. First, he argues that, in addition to being overruled by Sykes, Nix/Hays has been
overruled by the Supreme Court decisions in Begay and Johnson v. United States, 559 U.S. __,
130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). However, both of these cases were decided prior to
Nix/Hayes and, therefore, could not have overruled it. See United States v. Wilks, 464 F.3d 1240,
1243 (11th Cir. 2006) (stating that a Supreme Court case decided prior to this Court’s decision
“cannot logically be said to overrule” this Court’s decision). Second, several of Brown’s
arguments essentially challenge Nix/Hays on the ground that it was wrongly decided rather than
overruled by Sykes. We need not address those arguments because we “cannot overrule a prior
[panel]’s holding even though convinced it is wrong.” See United States v. Steele, 147 F.3d
1316, 1317-18 (11th Cir. 1998) (en banc). Finally, Brown notes that the district court erred in
overruling his objection to the facts of his Florida conviction (that he punched an officer) because
those facts came from a police report as opposed to the charging document. Because Brown
makes no further arguments in this regard, he has waived the issue. See United States v. Gupta,
463 F.3d 1182, 1195 (11th Cir. 2006) (“We may decline to address an argument where a party
fails to provide arguments on the merits of an issue.”).
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conclusion that Indiana’s vehicular flight crime is a violent felony.” Id. at __, 131
S.Ct. at 2274-75. The Court declined to conduct Begay’s “purposeful, violent, and
aggressive inquiry” because risk levels provided “a categorical and manageable
standard” for resolving the case. Id. at __, 131 S.Ct. at 2275-76. The Court
explained that “Begay involved a crime akin to strict liability, negligence, and
recklessness crimes; and the purposeful, violent, and aggressive formulation was
used in that case to explain the result.” Id. at __, 131 S.Ct. at 2276. Vehicle flight,
however, was not a strict liability, negligence, or recklessness crime, but was
similar in risk to the enumerated crimes, thereby qualifying as a violent felony
within the ACCA’s residual clause. Id.
Brown advances several specific arguments for why Sykes overrules
Nix/Hayes. First, he argues that Sykes has exempted negligence and recklessness
crimes from the application of the residual clause, whereas Nix/Hayes only
exempted strict liability crimes. However, Sykes does not state that strict liability,
negligence, or recklessness crimes always fall outside the scope of the residual
clause. See Sykes, 564 U.S. at __, 131 S.Ct. at 2275-76. Instead, Sykes (read in
conjunction with Begay) reflects the proposition that, if an offense has a mens rea
of strict liability, negligence, or recklessness, that offense would only qualify as a
crime of violence under the residual clause if it is purposeful, violent, and
8
aggressive, but if an offense has a knowing or intentional mens rea, then the Begay
inquiry becomes redundant, and risk levels would provide a sufficient standard for
making the crime-of-violence determination. See id. Because Nix/Hayes applied
the Begay inquiry in addition to the risk-level inquiry, the mens rea of the resisting-
with-violence offense does not affect Nix/Hayes’s holding, even if, as Brown
suggests, that offense is a negligence or recklessness crime. See Hayes, 409 Fed.
App’x at 278-79.
Brown further argues that Nix/Hayes was overruled because it improperly
relied only on common sense to determine whether resisting an officer with
violence posed a risk of injury to others. However, while Sykes used statistics in
addition to common sense in analyzing the risk posed by vehicle flight, Sykes never
stated that statistics must always be used in conducting a risk analysis or that a
common-sense assessment of risk, by itself, is insufficient. See Sykes, 564 U.S.
at __, 131 S.Ct. at 2274-75.
Finally, Brown contends that, unlike Sykes, this Court in Nix/Hayes did not
identify the closest analogues among the enumerated crimes to the offense in
question. It is true that Nix/Hayes did not specifically identify which of the
enumerated crimes most closely resembled resisting an officer with violence. See
Hayes, 409 Fed. App’x at 278-79. However, it did determine that the Florida
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offense contained the same element of purposeful violence and aggression as the
enumerated crimes. Id. at 279. Moreover, even though Sykes clarified the
procedure to be followed in making a crime-of-violence determination, this altered
procedure does not so conflict with the one used in Nix/Hayes as to render its
holding invalid. See United States v. Vega-Castillo, 540 F.3d 1235, 1237 (11th
Cir. 2008) (“Even if the reasoning of an intervening high court decision is at odds
with a prior appellate court decision, that does not provide the appellate court with
a basis for departing from its prior decision.”). Because, pursuant to Nix/Hayes,
Florida’s offense of resisting an officer with violence constitutes a crime of
violence under § 4B1.2(a), and because Nix/Hayes remains binding on this panel,
we affirm.
AFFIRMED.
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